Christmas peace revisited

In response to my column in the Journal Sentinel in the Christmas wars, I got a few comments - here and by e-mail - and I wanted to acknowledge those and comment on Dan Barker's opposing piece.

A few commenters thought it odd that a law professor would say something as simple as "get a grip." Of course, I said it after alluding to the ways in which we could have a lengthy and complicated discussion about the place of religion in public life in some context other than an 800 word op-ed. I also said I would not discuss what the law is (to the extent anyone can say) because that's not what my assignment was.

But, believe it or not, sometimes a little bit of common sense goes a long way in the law. If it seems odd to you that Merry Christmas on the City Hall marquis is regarded as an establishment of religion, it may just be because it is odd.

A few commenters raised the historical argument. Don't we have a "Godless Constitution?' The answer is "yes" and "no." It is quite clear that the framers thought that compulsion in matters of religion was both wrong and impossible. I think is also clear that they contemplated a separation of church and state. This is why I don't agree that America is a "Christian Nation."

But that doesn't mean that they intended to construct the type of formalistic wall that Dan Barker thinks ought to exist. In Dan's world, even the slightest whiff of religion in association with the government ought to give us a case of the vapors. However much Dan thinks this is hardwired into our Constitution, we actually got through most of our history without it.

In the past, some commenters have criticized people like David Barton who argue the "Christian Nation" hypothesis. I agree that this is usually "law office history," picking and choosing what supports a desired conclusion. But those who argue for the absolute wall do the same thing.


Such a concept would, moreover, be anachronistic in that it does not rest well with the modern pervasiveness of government. The commenters see a world in which areas of life that are too closely associated with government or public life are to be religion free while people pursue their individual faiths on their own and out of sight.

But, when government gets involved in much of our lives - teaching our children, freeing us from our addictions, pulling us from our poverty, instructing us on public morals - a religion free public square is not a neutral one. If government is going to tell us how to live (a prospect that the founders probably did not have in mind), then it can hardly avoid involving itself in matters where religion is concerned.

As I suggested in the column, this has an impact on religion because most scholars now believe that religion is formed in community and affected by what goes on around it. If you create an environment where religion is to be kept in the dark, you do one of two things. You either eviscerate it or you make it a counterculture that exists precariously within the larger culture.

For these reasons I have concluded that a less ambitious establishment clause is in order. We can't be neutral. We can't be absolutely even handed. We can be respectful and defend freedom of conscience. But driving Christmas from the public square does not serve either.

This doesn't mean that we ought to put the government into the religion business. That would be a horrible mistake. But it is where "get a grip" comes in. Creches and Christmas Trees are not the first step to Inquisition.

So I think its ok for merchants and even, to a limited degree, the government to acknowledge the religious nature of the holiday. Some ask how we are to decide which holidays are recognized? That's a fair question but, at the level of trees, creches and celebratory messages, I don't think it ought to be constitutionalized. My guess is that we will see acknowledgement of the Jewish High Holy Days and Ramadan. We won't see the celebration of L.Ron Hubbard's birthday.

Some commenters raise examples of Christian intolerance, including a much circulated story about how some kids claiming to be Catholic abused some Jewish kids on a subway.

Do I think that's ok ? Given that my sweet little grandson is about to enroll in Jewish Day School, I think it's fairly obvious that I don't. I might add that, assuming the story's accuracy, if Christian kids are abusing Jewish kids on the subway, the former are in need of remedial Sunday School.

But I don't think acknowledging Christmas will let loose packs of Christians wilding in the streets. If anything, it's telling people that they ought to shut up that breeds resentment.

One commenter leaves me with the lyrics (all of them) to Jackson Browne's "Rebel Jesus" in which he channels John Dominic Crossan and a smug teenage boy. I know the song. It's on a Chieftan's Christmas CD that we have. I heard it just the other day.

My first reaction is always to wonder how I missed all the "heathen" and "pagan" eleemosynary institutions that must populate Jackson's world. Where is the Bertrand Russell Center for Cardiac Care and the Wiccan Magic Circle and Heart Hospital? Because we know the Christians couldn't have started such places.*

But it's Christmas, so if Jackson means (and the commenter intended) to remind Christians that their faith means something the year around, I heartily agree.

Finally, both Barker and some commenters let the guard slip. These creche scenes are offensive because they tell us that we are not perfect in and of ourselves. We are in need of redemption and subject to a higher standards than our own preferences.
The source of that redemption is not in power or genius, but in love; a revelation that mocks our pretensions and has been a scandal for two thousand years.

So, for those who keep it, Merry Christmas.


* At the risk of belaboring what should be obvious, I know that people of other belief systems do charitable works. I'm commenting on Browne's "Gee, Mom & Dad and their lousy society are no good hypocrites" tone.